1. This is an application under s.39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Refugee Review Tribunal (the Tribunal) dated 12 October 2001 and handed down on 2 November 2001 affirming a decision of a delegate of the respondent to refuse to grant a protection visa to the applicant.

2. The applicant is a male national of India, a Sikh from the Punjab who arrived in Australia 15 October 1999. He lodged an application for a protection visa on 3 November 1999. A delegate of the Minister refused the application on 11 December 2001 and an application was made to the Tribunal for review of this decision on 14 January 2000.

3. The applicant claimed to fear persecution as a Sikh with an alleged political profile of support for the Akali Dal (Mann) political party derived from his father's association with that Party. He claimed to have been persecuted in the army because he was a member of the Party and to have been falsely charged with the murder of a Hindu doctor. He also claimed to have been the subject of a warrant to appear in Court on that charge and also on a charge of terrorism said to consist of placing a bomb in a police station.

The Tribunal decision

4. The applicant gave oral evidence to the Tribunal on 16 March 2001 and his adviser made written submissions and provided further information to the Tribunal on 30 March 2001. In its reasons for decision the Tribunal referred to publicly available information from various sources about persecution of Sikhs in India as well as to evidence supplied by the applicant and his adviser. It found that, apart from isolated incidents involving high profile activists, the situation in the Punjab was now much more settled than it had been in the past when Sikhs did suffer what could be described as persecution.

5. The Tribunal did not accept that the applicant was singled out for persecution whilst in the Indian army on the basis of a perception about his and his father's support of a particular political party in Punjab. It noted that despite having the right to resign at any time during his designated period of service he chose to remain for more than four and a half years of his five year term. In any event, the treatment that he alleged (being treated sternly by army superiors or being given duties he did not like) did not come within the definition of persecution contained in s91R of the Act.

6. The Tribunal also found that the applicant did not the profile of a political activist in Punjab or elsewhere in India. He had limited awareness of the party leader's pronouncements and activities, had never joined the Akali Dal (Mann) party or any other political party and had never voted in any elections.

7. The Tribunal did not accept that the applicant had been charged with a politically motivated murder of a Hindu doctor or with terrorist activities. His description of being questioned and released and his ability to leave the country on his own passport were not compatible with his having been charged with such serious offences. The Tribunal accepted that he may have been required to answer questions at a magistrate's inquiry and that as a result of his failure to appeal, an arrest warrant may have been issued, but it did not accept that the Indian police would release a person suspected of such serious crimes on bail after just two hours of questioning. Nor was it satisfied, despite country information indicating that there could be significant delays in the Indian court system, that a person suspected and/or charged with such serious offences would be released on bail and nothing further would happen for several months.

8. The Tribunal did not accept that the applicant was singled out by the police because of his father's association with an activist Sikh organisation or the Akali Dal (Mann) party or because he had been in the Indian army. The Akali Dal (Mann) was a recognised political party and country information indicated that its supporters and those of the AISSF were no longer targeted for persecution in Punjab or elsewhere. The Tribunal also found it unlikely that the police would suspect someone who had been in the army of being prone to being involved in terrorism. The Tribunal considered it more likely that such a person would be perceived as someone who supported the status quo.

9. The Tribunal did not accept that the applicant would have been able to easily depart India were he in fact wanted in relation to charges of planting bombs or committing a racially and/or religiously motivated assassination. It noted that country information indicated that airport checks in India are quite thorough.

10. Whilst the Tribunal did not accept that the applicant had been charged with a politically motivated murder or terrorist activity it accepted that it was possible that he had been charged with a criminal offence that he was not prepared to disclose. It accepted that if this were the case he may face consequences upon return to India of facing criminal charges including breaking bail conditions but was not satisfied that the applicant faced Convention based persecution. People fleeing from prosecution or punishment for a common law offence and/or the non-discriminatory application of a law of general application are not facing persecution for one of the reasons stated in the Convention and are not, without more, normally refugees. The Tribunal was not satisfied that charges (if any) levelled against the applicant were related to his real or imputed political opinion or because he is a Sikh.

11. The Tribunal was satisfied that there was no real chance of the applicant facing Convention based persecution if he returned to India. It was therefore not necessary to consider relocation but the Tribunal noted that the applicant was free to relocate to another part of India. Taking all of the applicant's claims into account, individually and cumulatively, the Tribunal was not satisfied that there was a real chance that he would face persecution on the basis of a real or imputed political opinion or for any other Convention ground if he were to return to India now or in the foreseeable future. It found that he did not have a well-founded fear of persecution on a Convention ground.

The application

12. In the amended application for review filed by the applicant on

22 February 2002 a number of grounds for review were identified. However in oral submissions Mr Fernandez, Counsel for the applicant, indicated that the only grounds of review relied upon were those specified in the applicant's further contentions of law filed on

31 January 2003 as follows:

"...the applicant submits (sic) that:

1. Having heard the application for review on 16 March 2001 and handing down its decision on 2 November 2001 i.e. after section 91R came into operation on 1 October 2001 (see Act 131 of 2001) the Tribunal erred in making a finding pursuant to that Section.

2. As a member of the Akali Dal (Mann) Party he does not (sic) fear being targeted either as belonging to that party on account of his profile or being falsely implicated in any criminal proceedings based on information relied on by the Tribunal and not given to the applicant. The respondent has erred in not providing this information to the tribunal (sic) thereby breaching Section 424A of the Act"

In oral submissions Mr Fernandez explained that the first of these submissions was a submission that s.425 of the Migration Act 1958 (the Act) had been breached by the Tribunal's failure to invite the applicant to a second hearing after s91R came into operation, to advise him that there had been a change in the law and to invite him to give further evidence and present arguments in relation to issues relevant after the introduction of s.91R. It was submitted that s.91R (which limits the application of Article 1A(2) of the Refugees Convention in relation to persecution for the purposes of the application of the Act and Migration Regulations and which restricts the relevance of conduct engaged in Australia in a determination of whether a person has a well founded fear of persecution) had made a significant change in the law as indicated by the Explanatory Memorandum to Act No. 131 of 2001 which introduced the change. It was submitted that this was of significance in considering the Tribunal's obligations. The decision of the High Court in MIMA v Bhardwaj (2002) 187 ALR 117 was said to support the proposition that in circumstances where the law has changed after a hearing and the Tribunal's decision was made on the basis of such change, then the decision of the Tribunal was not a decision under the Act and hence not a privative clause decision.

13. The second submission was also clarified. It was submitted that, contrary to the findings of the Tribunal, as a member of the Akali Dal (Mann) Party the applicant did fear being targeted. The Tribunal's contrary conclusion in this respect was said to be based on information not given to the applicant. It was said that in failing to provide this information to the applicant, the Tribunal had breached s.424A of the Act. Mr Fernandez identified the information in question as aspects of the country information referred in the Tribunal's decision (in particular the UK Home Office Country Assessment 2000 Report on India dated October 2000 and also other independent information relied upon by the Tribunal including information from the Akali Dal (Mann) website, reports from the Australian Department of Foreign Affairs, articles in Indian newspapers, the Indian Army's official website and a DFAT country information report on India dated 2 August 1999). It was submitted that this information was crucial in the Tribunal's assessment of the application and that the failure to give particulars of the information to the applicant and to invite his comment was a breach of s.424A. It was further submitted that the exception in s.424A(3) (in relation to information that is not specifically about the applicant or another person but is just about a class of persons of which the applicant or another person is a member) was not applicable as the information relied by the Tribunal was specifically about the applicant as a claimant for a visa.

14. It was further claimed that a decision which involved a breach of s.424A or s425 involves jurisdictional error.

15. Mr Fernandez expressly disclaimed any reliance on a claim of a failure to accord natural justice to the applicant.

The relevant law

16. Pursuant to s.483A of the Act this Court has the same jurisdiction as the Federal Court in relation to a matter arising under the Migration Act. Under s.475A it has jurisdiction in relation to a privative clause decision that is a decision made on a review by the Tribunal. Privative clause decision is defined in subsections 474(2) and (3) of the Act. Subsection 474(1) of the Act limits review by the Court of privative clause decisions

17. Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 the High Court held that as a matter of construction the expression `decision(s)...made under this Act' in subsection 474(2) `must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction or an excess of the jurisdiction conferred by the Act' (at [76] and also see [19] per Gleeson CJ and [163] per Callinan J). If there has been a jurisdictional error the decision cannot properly be described as a decision made under this Act and is thus not a privative clause decision as defined in subsections 474(2) and (3) of the Act. Further a decision flawed for reasons of failure to comply with the principles of natural justice is said not to be a privative clause decision within s.474(2). If there is no jurisdictional error affecting the Tribunal's decision then the decision would be a privative clause decision and protected by s.474(1) unless it was shown that one of the Hickman provisos had not been met (see R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598). In Plaintiff S157/2002 the High Court confined itself to a general statement of principle in relation jurisdictional error and a particular issue of jurisdictional error by reason of a denial of procedural fairness as asserted by the plaintiff. The precise scope of the notion of jurisdictional error in this context and the determination of which provisions in the Migration Act constitute inviolable limitations or restraints raise some complex issues (see for example Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicants S134/2002 (2003) 195 ALR 1 in relation to s.65 of the Migration Act). However it is not necessary to determine these issues in this case as I am not satisfied that any error has been established.

The present case

18. The first ground relied on by the applicant is that there was a breach by the Tribunal of s.425 in not inviting the applicant to a second hearing after the introduction of s.91R by Act No.131 of 2001 which came into force after the hearing but before the decision of the Tribunal was made. I note in this respect that Clause 7(c)(iii) of Part 2 of Schedule 1 to the Migration Legislation Amendment Act (No.6) 2001 provides that subdivision AL of Division 3 of Part II of the Migration Act (which includes s.91R) applies in relation to an application for a protection visa made before the commencement of the item where the Refugee Review Tribunal made a decision on that review after that commencement. The visa application was made before s.91R came into effect. The Tribunal decision was made after s.91R came into effect. Hence the Tribunal correctly applied this provision.

19. There was no error in the Tribunal's reliance on s91R in its finding that the acts of mistreatment were not of such severity to constitute persecution. This is a finding of fact (see Arumugam v MIMIA [1999] FCA 251 at [37] and on appeal [1999] FCA 1285). The time for assessment of whether the requisite elements of the Convention definition were satisfied was the date of determination and s.91R applied at this date. Indeed the applicant did not take issue with the Tribunal's application of s.91R - rather it was claimed that a second hearing was required. However, it is misconceived to submit that the Tribunal was under an obligation to recall the applicant to advise him of the change in the law in relation to the definition of persecution.

20. The Tribunal gave the applicant the requisite invitation to a hearing. The applicant attended the hearing. He had a reasonable opportunity to give evidence and meet Tribunal concerns. Section 425 was not breached. It provides relevantly:

(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

21. This is not a case where the Tribunal has, through oversight, failed to give the applicant a hearing as it is obliged to do, such as was said in MIMA v Bhardwaj (2002) 187 ALR 117 to be the type of conduct constituting a denial of procedural fairness. Section 425 indicates a legislative intention that an applicant is to have an opportunity to attend an oral hearing (NAHV v MIMIA [2003] FCA 140 per Hely J). However there is nothing in s425 to state that the applicant must be given a second invitation to appear after he has taken up a Tribunal invitation to give evidence and present arguments as to the issues arising in relation to the decision under review. It was not argued by the applicant that the failure to afford an opportunity to attend a second hearing was a denial of natural justice and indeed the material before the Court does not suggest that there was any lack of procedural fairness. The applicant was given and took the opportunity to give evidence and present arguments to the Tribunal. The Tribunal properly made findings of fact and applied the law in force at the date of its determination. The Tribunal did not fail in its duty to the applicant or breach s.425 in not recalling him because the law had changed - it being for the Tribunal to assess the evidence in accordance with the applicable law.

22. The second argument was that there was a breach of s.424A in the Tribunal's failure to bring to the attention of the applicant the country and other information on which it relied. However first, not all of the Tribunal findings were based on this information. The findings involved rejection, by way of logically drawn inference, of central elements of the applicant's claims. The Tribunal made credibility findings as to the likelihood of certain aspects of the claims being true. Such findings were open on the material before it after consideration of matters logically probative on this issue. In so far as the respondent is trying to revisit the Tribunal findings of fact this is an impermissible approach.

23. Secondly, there was no obligation on the Tribunal to give the applicant notice of general country information on which it relied. MIMA v Al Shamri (2001) 110 FCR 27 establishes that a purposive approach to s.424A should be adopted. It is consistent with the beneficial purpose of s.424A of affording an applicant an opportunity to respond to the substance of any adverse information upon which the Tribunal proposes to act (the significance of which the applicant maybe unaware) to take a narrow rather than a broad view of the exceptions in s.424A(3). However, in this case the information in question is clearly within the exception in s.424A(3)(a). It is not specifically about the applicant or another person but is about a class of person to which he belongs. The country and other information related to the position of Sikhs in the Punjab generally. This is a class of persons of which the applicant is a member. A similar argument was considered by the Full Court of the Federal Court in SBBS v MIMIA (2002) 194 ALR 749. In that case it was submitted that the Tribunal was required to give notice to the applicant of certain country information about the then current political situation in Afghanistan under s.424A of the Act or under the rules of procedural fairness. The Court noted that the documents in question included statements about the treatment of a class of persons of which the applicant was a member. It therefore followed that the documents fell within the exception contained within s.424A(3)(a) as do the documents in this case. Also see WAAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 409 and VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74. It was not suggested that there was any denial of procedural fairness in this respect (cf Kirby J in Re Minister for Immigration & Multicultural Affairs Ex parte `A' (2002) 185 ALR 489 at [48]).

24. As it has not been established that there was any breach of s.424A or s.425 it is not necessary to consider the effect of the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2. It has not been claimed that there was a denial of natural justice or that there was any breach of the Hickman provisos. Accordingly the application should be dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Barnes FM